TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, January 30, 2017

Journal of Tort Law Invites Submissions

The Journal of Tort Law is the only peer-reviewed journal devoted to tort law in the United States.  It offers several advantages to those submitting scholarship.  First, your work will be reviewed by peers.  This is particularly important for more technical pieces.  Second, there is no submission cycle.  Articles can be submitted at any time.  Third, the Journal routinely publishes high-quality articles.  The two issues to be published in 2017 are great examples.  Volume 10, Issue 1 will publish articles from the Torts and Compensation Systems Section's panel at the AALS Annual Meeting.  Covering "Gun Regulation and Private Law," authors include Leslie Kendrick (UVa), Adam Scales (Rutgers), and Steve Sugarman (Berkeley).  The issue will also contain an article by Greg Keating (USC).  Volume 10, Issue 2 will feature a symposium on the Restatement of the Law Third:  Intentional Torts to Persons.  Reporters Ken Simons (UC Irvine) and Jonathan Cardi (Wake Forest) will respond to commentary from Anita Bernstein (Brooklyn), Ellie Bublick (Arizona), Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Mike Green & Bill Powers (Wake Forest/Texas), Nancy Moore (Boston University), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Steve Sugarman (Berkeley), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham). 

Submission information is available here.  The Journal has adopted a policy that authors will have either a decision or an update within 45 days of submission.  

January 30, 2017 in Scholarship | Permalink | Comments (0)

Sunday, January 29, 2017

Sterrett on Comparing US and EU Products Liability

Lauren Sterrett has posted to SSRN Products Liability:  Advancements in European Union Product Liability Law and a Comparison between the EU and U.S. Regime.  The abstract provides:

In recent years, the product safety regime in the European Union (“EU”) has been amended to provide increased stability for producers and more protection for consumers. The framework seeks to balance the interest of consumers in having access to safe products with the interest of producers in avoiding costly litigation due to differing national standards. There are currently three prominent EU directives designed to protect the health and safety of consumers. These three directives are the Product Liability Directive (the “Directive”), the European General Product Safety Directive (the “GPSD”), and the Product Warranty Directive.1 This paper will focus on the impact of the Directive and the GPSD in the EU and will compare these two directives with product liability law in the United States (“U.S.”). This paper will also explore the newly proposed Product Safety and Market Surveillance Package (the “Package”), expected to replace the GPSD as soon as 2015, and the impact that the Package will have on product liability law in the EU.

The combination of the Directive and the GPSD provide a comprehensive scheme for product liability law in the EU. When compared with U.S. product liability law, these two directives achieve greater harmonization across member states than the current U.S. product liability regime. Although both the EU and the U.S. have similar product liability laws, the current EU regime often affords consumers greater access to redress and maintains strict requirements in regards to product labeling. The proposed Package will introduce even more harmonization into the EU, making it harder on economic operators who sell or produce defective products to escape liability. However, the EU product liability regime is not without problems and there are multiple areas in which the U.S. product liability framework offers better alternatives and provides less confusion for manufacturers and consumers.

January 29, 2017 in Products Liability, Scholarship | Permalink | Comments (0)

Friday, January 27, 2017

Arkansas (Fayetteville) Seeks Lateral Hire in Torts

The University of Arkansas School of Law, Fayetteville, has a current opening for a tenure track Associate or Full Professor of Law. The law school is focused on hiring an individual with experience teaching first-year Torts and associated upper level classes. Other duties will include scholarly research and service activities for the School of Law.  Minimum qualifications include a JD degree or international law degree, tenure track teaching experience, and a distinguished academic record. Preferred qualifications include holding a law license and having two years of practical legal experience. The law school is hoping to find a candidate to begin either in the Fall of 2017 or Spring of 2018.

A complete position announcement may be viewed at the University Human Resources' job portal:

The University of Arkansas-Fayetteville, located in the northwest corner of the state, is the flagship campus of the University of Arkansas. The University of Arkansas is an equal opportunity, affirmative action institution. The University welcomes applications without regard to age, race/color, gender (including pregnancy), national origin, disability, religion, marital or parental status, protected veteran status, military service, genetic information, sexual orientation or gender identity.  Persons must have proof of legal authority to work in the United States on the first day of employment. All applicant information is subject to public disclosure under the Arkansas Freedom of Information Act 

Applicants with questions may contact Professor Steve Clowney, Chair, Faculty Appointments Committee, at

January 27, 2017 | Permalink | Comments (0)

Thursday, January 26, 2017

The Iowa Spring Gun Case

At Coverage Opinions, Randy Maniloff interviews Garold Heslinga, the lawyer for Marvin Katko, the thief in Katko v. Briney.  The 93-year-old just retired after 66 years of practice.  His reaction when Katko came to him with the case:  "Damn, this will be fun."

January 26, 2017 | Permalink | Comments (0)

Wednesday, January 25, 2017

Hershovitz Reviews Ripstein's "Private Wrongs"

Scott Hershovitz has posted to SSRN The Search for a Grand Unified Theory of Tort Law.  The abstract provides:

In Arthur Ripstein's new book "Private Wrongs," he argues that one simple idea accounts for all of tort's rights and remedies: no one is in charge of anyone else. In this review, I argue that Ripstein is wrong about that. I outline his account of tort, and then set out (some of) the details of the doctrine for which he has failed to account. I also argue that the ambition of Ripstein's book is misguided: we ought not expect simple explanations for complicated and contingent institutions, like tort. Nevertheless, I find lots to admire in Ripstein's book, and I recommend it to everyone who is interested in private law.

January 25, 2017 in Books, Scholarship | Permalink | Comments (0)

Tuesday, January 24, 2017

MO: Collateral Source, Daubert Bills Voted Out of House Committee

In Missouri, tort reform bills to adopt Daubert as the state standard on scientific and technical evidence and restrict the collateral source rule passed 9-3 in the House Special Committee on Litigation Reform.  The bills move on to the full House.  The Missouri Times has details.

January 24, 2017 in Experts & Science, Legislation, Reforms, & Political News | Permalink | Comments (0)

Monday, January 23, 2017

SCOTUS Cert Grant: Products Liability and Jurisdiction

On Thursday, the Court granted cert in a products case against Bristol-Myers Squibb regarding its blood-thinning drug, Plavix.  The jurisdictional issue is whether, as the California Supreme Court ruled, Bristol-Myers Squibb must defend claims in California by nonresidents who allege the blood-thinning drug Plavix caused bleeding and strokes.  

According to the cert petition (PDF), Plavix is not made, designed or packaged in California. The California Supreme Court nonetheless ruled that both in-state and out-of-state residents could sue in the state because Bristol-Myers conducts research, sales and marketing there.

The ABA Journal has the story.

January 23, 2017 in Products Liability | Permalink | Comments (0)

Friday, January 20, 2017

HLS Posdoctoral Fellowship in Private Law


The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

Further information available here:  Download PostdoctoralFellowshipinPrivateLawCallforApps2017

January 20, 2017 | Permalink | Comments (0)

Thursday, January 19, 2017

New Study: Malpractice Law Does Not Improve Results

A new study from Northwestern's Feinberg School of Medicine has concluded that stronger med mal laws do not translate to better care.  Fox News Health has the story, quoting both Michelle Mello and William Sage.

January 19, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, January 18, 2017

OH: No Police Liability for Injuries to Innocent Bystander During Chase of Fleeing Felon

Marianna Brown Bettman has commentary at Legally Speaking Ohio.

January 18, 2017 in Current Affairs, Weblogs | Permalink | Comments (0)

Monday, January 16, 2017

CT: Rejection of R(3): Products Liability

In late December, the Connecticut Supreme Court reaffirmed its commitment to 402(A), but also modified existing doctrine.  Jennifer Brooks Crozier and Adam Masin explain at JD Supra Business Advisor.  The gist:

In arguably the most important Connecticut tort-law decision in decades, the Connecticut Supreme Court in Bifolck v. Philip Morris, Inc., --- A.3d ---, 2016 WL 7509118 (Conn. Dec. 29, 2016), declined to adopt the approach of the Restatement (Third) to product liability design-defect claims and  “reaffirm[ed] its allegiance” to a “true strict liability” standard under § 402A of the Restatement (Second).  The Court also made a number of “modest refinements” to the Court’s existing interpretation of § 402A.  Most importantly, the Court held that every product liability design-defect claim must allege that the product was “unreasonably dangerous,” but declined to box plaintiffs into one definition of that term for purposes of stating a claim.  The Court also refused to limit punitive damages under the Connecticut Product Liability Act (“CPLA”) to the “litigation expenses less costs” limit under the common-law rule set forth in Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 477 A.2d 988 (1984).  Given the Court’s cautious approach to remaking the state’s tort law, Bifolck is in practice a reaffirmation of the status quo in Connecticut—at least for now.  The Court did leave open the possibility that it might adopt the Restatement (Third) at some point in the future should its standards under § 402A prove “unworkable.”

January 16, 2017 in Current Affairs, Products Liability | Permalink | Comments (0)

Friday, January 13, 2017

A State-by-State Breakdown of Med Mal Cases

Becker's Hospital Review provides a state-by-state comparison of malpractice suits and costs per 100,000 residents, in order from the largest amount (Louisiana at 44.1  suits per 100,000 residents) to the smallest (Hawaii at 4.9).  The list is here.

January 13, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, January 12, 2017

JOTWELL Torts: Hershovitz on Cornell on the Connection Between Rights and Wrongs

At JOTWELL, Scott Hershovitz reviews Nicolas Cornell's Wrongs, Rights, and Third Parties.

January 12, 2017 in Scholarship, Weblogs | Permalink | Comments (0)

Purposeful Infliction of Bodily Harm

Tentative Draft No. 1 of the Restatement of Intentional Torts includes Section 104 on the Purposeful Infliction of Bodily Harm:

§ 104.     Purposeful Infliction of Bodily Harm

An actor is subject to liability to another for purposeful infliction of bodily harm if:

(a) the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm … 

Comment b.  … This Section recognizes intentional-tort liability in a small group of cases in which the contact requirement of battery liability is not satisfied but in which the actor’s culpability is especially pronounced.
Last month, Kurt Eichenwald, an author at Newsweek and critic of Donald Trump,  experienced an epileptic seizure when someone deliberately tweeted him a flashing yellow and orange starlike image reading, "you deserve a seizure for your posts."  Eichenwald had just finished a contentious interview on Fox News; it is well-known that Eichenwald suffers from epilepsy.   Story here
Ken Simons, a Reporter on the project, comments:
What is especially interesting about this case is:
(a) It is doubtful that battery liability would be recognized on these facts, given the difficulty of proving that the defendant’s interaction with the plaintiff satisfies battery’s contact requirement;
(b) It is quite possible that liability would be recognized under Sec. 104 of the Restatement Third, Intentional Torts to Persons (Tentative Draft No. 1, April 8, 2015, approved by American Law Institute):

January 12, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, January 11, 2017

11th Cir: Economic Loss Rule Applied in Products Case

In the National Law Review, Walter Latimer has a column about a recent Eleventh Circuit products case upholding the economic loss rule:

The Economic Loss Rule is a doctrine of law that prohibits a product liability claim being brought against a manufacturer for a defective product that only destroys itself, without harm to other property or to a person. In those instances where the product fails but only damages itself and nothing else, the plaintiff’s only remedy is to sue for breach of contract against the manufacturer of the product. The plaintiff cannot seek recovery from the manufacturer under product liability causes of action. The Economic Loss Rule has historically served as the boundary between tort and contract law. Despite the fact it is part of the basic fabric that makes up tort law, it is still challenged by plaintiffs in product liability actions.

In Eiber v. Toshiba Americas Medical Systems, the plaintiff radiologist tried to sue an international electronics manufacturer for failing to maintain an MRI scanner that was out of date. The manufacturer advised the radiologist that the scanner had reached the end of its useful life, and the manufacturer would no longer provide service to it under contract. The aging scanner eventually stopped working, which the plaintiff claimed was due to negligent repairs rather than a failure of the scanner.

The Eleventh Circuit affirmed the district court's dismissal on the basis of the economic loss rule.

January 11, 2017 in Current Affairs, Products Liability | Permalink | Comments (0)

Tuesday, January 10, 2017

AALS Torts Section Chairs 1980-Present

It has been an honor to serve on the AALS Torts & Compensation Systems Section's Executive Committee since January 2012.  I rotated into the Chair position last Friday.  I enjoy history, and began to think about the history of the Section.  The Section was created around 1973; prior to that, AALS organized in "roundtables," which I take to have been less permanent entities.  The AALS has a list of all Section chairs since 1980, which I reproduce below.  The term is now one year, but it appears a two-year term was used during the mid-1990s.  If anyone has further information about the Section's history and would like to share it, please comment on the blog (comments are not immediate) or email me. 

Dominick Vetri University of Oregon School of Law 1/1/1980
Frederick Davis   1/1/1981
Thomas C. Cady West Virginia University College of Law 1/1/1982
Jean C. Love Santa Clara University School of Law 1/1/1983
Harvey S. Perlman University of Nebraska College of Law 1/1/1984
James A. Henderson, Jr. Cornell Law School 1/1/1986
Jean C. Love Santa Clara University School of Law 1/1/1987
David G. Owen University of South Carolina School of Law 1/1/1988
Walter Probert University of Florida Fredric G. Levin College of Law 1/1/1989
Lucinda M. Finley University at Buffalo School of Law, The State University of New York 1/1/1990
Aaron D. Twerski Brooklyn Law School 1/1/1991
Oscar S. Gray University of Maryland Francis King Carey School of Law 1/1/1992
Diane C. Maleson Temple University, James E. Beasley School of Law 1/1/1993
Jennifer H. Arlen New York University School of Law 1/1/1995
Richard W. Wright Chicago-Kent College of Law, Illinois Institute of Technology 1/1/1997
Mark F. Grady University of California, Los Angeles School of Law 1/1/1999
Catharine Wells Boston College Law School 1/1/2000
Stephen G. Gilles Quinnipiac University School of Law 1/1/2001
Keith Norman Hylton Boston University School of Law 1/1/2002
Anita Bernstein Brooklyn Law School 1/1/2003
Kenneth W. Simons University of California, Irvine School of Law 1/1/2004
Peter A. Bell Syracuse University College of Law 1/1/2005
Richard L. Cupp, Jr. Pepperdine University School of Law 1/1/2006
James R. Hackney, Jr. Northeastern University School of Law 1/1/2007
Ellen Michelle Bublick The University of Arizona James E. Rogers College of Law 1/1/2008
John C.P. Goldberg Harvard Law School 1/1/2009
Catherine M. Sharkey New York University School of Law 1/10/2010
Michael L. Rustad Suffolk University Law School 1/8/2011
John Valery White University of Nevada, Las Vegas, William S. Boyd School of Law 1/8/2012
Jennifer Wriggins University of Maine School of Law 2/14/2013
Andrew R. Klein Indiana University Robert H. McKinney School of Law 2/14/2014
Anthony J. Sebok Benjamin N. Cardozo School of Law 2/14/2015
Leslie Kendrick University of Virginia School of Law 2/14/2016


January 10, 2017 in TortsProfs | Permalink | Comments (0)

Monday, January 9, 2017

Goldberg & Zipursky on Hohfeld

John Goldberg & Ben Zipursky have posted to SSRN Hohfeldian Analysis and the Separation of Rights and Powers.  The abstract provides:

At the time he wrote, Wesley Hohfeld seemed to be of the view that longstanding conceptual confusions that had blocked progress in legal thought — particularly confusions about legal rights — would soon be put to rest. If so, rights have proved a tougher nut to crack than he expected. Indeed, the difficulty of providing an adequate account of rights has led many scholars, including scholars who share Hohfeld’s aptitude and aspirations for analytic philosophy, to lose sight of a distinction central to Hohfeld’s project, namely, the distinction between a right (or claim right) and a power. Or so we argue in Part I. Worse, confusions over rights and powers, when combined with a particular understanding of what constitutes clear-eyed analysis of legal issues, has contributed to the now-widely shared but mistaken supposition that common law reasoning must (or should) take the form of instrumental reasoning. We outline this claim in Parts II and III.

Ultimately, we suggest that Hohfeld’s juristic legacy contains two profound ironies. His entirely sound insistence on the analytic separation of legal rights and legal powers has helped to obscure their deep substantive connection in certain bodies of law, especially tort and contract law. And his implicit acceptance of the idea that a commitment to conceptual clarity goes hand in hand with instrumentalism in legal analysis has indirectly led prominent courts — including most famously the California Supreme Court in landmark decisions such as Rowland v. Christian — to mangle how rights, duties, and powers are linked within private law.

(Via Solum/LTB, where it is the Download of the Week)

January 9, 2017 in Scholarship | Permalink | Comments (0)

Friday, January 6, 2017

Nader on Tort Reform

Plaintiffs' lawyer Mike Papantonio interviews Ralph Nader on tort reform here.

January 6, 2017 in Legislation, Reforms, & Political News | Permalink | Comments (0)

Wednesday, January 4, 2017

AALS Torts Section in SF

The AALS Section on Torts and Compensation Systems panel information:

"Gun Regulation and Private Law"
Friday, Jan 6, 1:30-3:15 pm
Hilton San Francisco Union Square, Ballroom Level, Continental Parlor 3.
Adam Scales, Rutgers Law School
Stephen Sugarman, UC-Berkeley School of Law
Christine Van Aken, San Francisco City Attorney's Office
Leslie Kendrick, Chair of the Section/Moderator, UVa Law
The Section is also co-sponsoring the Litigation panel on MDL Problems; it is from 10:30-12:15 on Friday in Golden Gate 7 on the lower level.

January 4, 2017 in Conferences, Current Affairs | Permalink | Comments (0)

Tuesday, January 3, 2017

Porat on Calabresi's "Future of Law and Economics"

Ariel Porat has posted to SSRN The Future of Law and Economics and the Calabresian External Moral Costs.  The abstract provides:

This short essay is a contribution to a symposium held at the Hebrew University of Jerusalem on Professor Calabresi's "The Future of Law and Economics." It focuses on Calabresi's arguments that tort law facilitates a modified market for merit goods, and that external moral costs should be seriously taken into account by the state and the law in making and implementing difficult social choices. The essay points out two categories of situations where tort law fails to facilitate modified markets for merit goods, and highlights the hurdles in considering external moral costs at least in some cases.

January 3, 2017 in Books, Conferences, Scholarship | Permalink | Comments (0)